I’ve covered this subject before, fairly recently, but I’m going to make no apologies for returning to it again to revisit and add to my original comments.

In a column in last Friday’s Daily Telegraph, Iain Dale had this to say about a particular issue that he expects will soon confront David Cameron:

One issue about to confront Mr Cameron is the proposed gay hatred laws. I understand there are bitter divisions within the shadow cabinet. Some believe the party should oppose the proposals lock, stock and barrel, as similar measures were opposed on religious and racial hatred. Others argue this would be political suicide for the Tories, who would then automatically forgo the support of the gay community.

Before going to justify his own opposition to the proposed introduction of a new offence of incitement to hatred on grounds of sexual orientation or perceived sexual orientation in terms that are, in just about every material respect, completely wrong.

Let’s start by disposing of the unhelpful rhetoric.

What the government proposes to introduce are not ‘gay hatred laws’ but a specific offence of incitement to hatred in line with the provisions covering religious hatred, which were introduced by Labour in 2005, and racial hatred, which were introduced by s17-22 the Public Order Act 1986.

Yes, your eyes do not deceive you, the first instance in which incitement to hatred was criminalised was introduced by a Conservative government, and that of Margaret Thatcher no less, during her second term as Prime Minister, this being regarded as the period during which she, and her government, were at its most radical. One, therefore, has to ask whether, in claiming to be opposed to the new offence of incitement to hatred on grounds of sexual orientation as a both a matter of principle and as being unnecessary, Iain and others who share that view consider the provisions on racial hatred introduced by the Thatcher government to be equally unnecessary and are content to repudiate a principle that that government were happy to accept.

There is a distinct difference between the notion of making ‘gay hatred’ unlawful, which is not what’s being proposed and the offence of inciting hatred, which is. The offence of incitement, in whatever form, is specific to speech, writings and other related actions that are undertaken with the intent of inducing others to commit a criminal act, or which are undertaken recklessly in the knowledge that the are likely to induce others to carry out such act.

Iain tries to suggest that the new offence will create a ‘legal minefield’:

If, as is suggested by Justice Secretary Jack Straw, the burden of proof is on the accused to prove they didn’t mean something in a hateful way, it will create a legal minefield. If someone calls a homosexual a ”poof”, it can be meant in a number of ways, as this week’s Ofcom ruling in favour of Channel 4 has shown. It can be meant in a hateful way but it can also be used as an affectionate term, believe it or not.

It wont, and Iain’s suggestion that calling a homosexual a ‘poof’ might prove problematic is a complete and utter nonsense, simply because, even if used as in pejorative sense such a statement lacks any evidence of intent, which is necessary to the construction of the offence. “Kill the poof” would be a very different matter, both qualitatively and legally but merely referring to someone as a ‘poof’ would no be enough to warrant a charge.

To give this a little more context, in answer to a question in the House of Lords (31 Jan 2005), the then Attorney General, Lord Goldsmith, indicated that, to that point, there has been a total of 65 prosecutions for inciting racial hatred since the provisions of the Public Order Act 1986 came into force in 1987, of which 44 resulted in a conviction at trial.

(Of the remaining 21 cases, 5 resulted in acquittals, there were 6 cases dropped by the prosecution, 2 were ongoing, 2 were incomplete due to the offender absconding, 2 more were dealt with by binding over the offender, 1 case expired – literally – along with the defendant, who died, and there was one nolle prosequi, a case stayed because the defendant was mentally unfit to stand trial and an unknown)

Similarly, a 2004 regulatory impact assessment, conducted in conjunction with the proposal to introduce provisions covering religious hatred within the Serious and Organised Crime Bill shows that over the previous three years, of 84 cases referred to the CPS for consideration only 4 resulted in a prosecution, resulting in two convictions.

This is well in keeping with the kind of specious rhetoric that’s peddled as matter of routine by the Tweedledee and Tweedledum of evangelical Christianity, our old ‘friends’ Colin Hart, of the Christian Institute, and Annette Minichiello Williams, of the Lawyer’s Christian Fellowship:

Evangelical Christian groups was [sic] concerned that people who said gay sex was wrong could end up in jail. (so much for sub-editors. U.)
Colin Hart, director of the conservative evangelical Christian Institute, said: “In a democratic society people must be free to express their beliefs without fear of censure. A homophobic hatred law would be used by those with an axe to grind against Christians to silence them. There have already been high-profile cases of the police interfering with free speech and religious liberty regarding sexual ethics. People shouldn’t face prison for expressing their sincerely held religious beliefs.”

Without fear of censure? What, you mean I’m not even allowed to say that you’re wrong, Colin?

So far as ‘high-profile cases of the police interfering with free speech and religious liberty regarding sexual ethics’ is concerned, Colin is referring to this kind of thing:

Free speech is under serious threat. Even without a homosexual hate crime there have been a number of recent high profile cases where gay rights activists have sought to get the police to stop Christians speaking up about homosexuality. Joe and Helen Roberts, a Christian couple from Lancashire, were interrogated by police because they complained to their local council over its gay rights policy. The Bishop of Chester was investigated by police for citing evidence that homosexuals can ‘reorientate’ to heterosexuality. Police telephoned family values campaigner Lynette Burrows after she aired concerns about homosexual adoption on BBC radio.

Which, when expressed in terms of advice to Catholics about writing to MPs to express opposition to the proposed new offence, translates into this:

Say that activists are willing to use malicious complaints to the police in order to silence their opponents. There have already been several cases of police wrongly investigating Christians without a ‘gay hatred crime’ in existence.

The Police did not ‘wrongly’ investigate any of the cases cited above.

They received specific complaints which alleged than an offence had been committed and carried out an investigation to determine whether there was any evidence to support that complaint – which is precisely what the Police are supposed to do. Not one of those cases resulted in a prosecution – quite correctly – or even an arrest as the outcome of each investigation was that there was insufficient evidence to merit further investigation so, in each case, the criminal justice system worked exactly it should.

The Police do not have the legal authority to decline to investigate complaints where the complaint, itself, has a sound legal basis, i.e. where its alleged that a specific offence has been committed. Like it or not, in such circumstances they are required, at the very least, to ascertain if there is any evidence to support the assertion that an offence has taken place, even if – on the face it – the actions being complained about are so trivial as to make an investigation seem unnecessary or even rather silly.

Given that there are clearly some people who are prone to overreact and cry foul over what are clearly trivial matters, there may be some justification in requiring such complaints to be ‘triaged’ by a CPS prosecutor before the Police proceed to the interview stage of an investigation, much as prosecutions for inciting hatred much be approved the Attorney General before proceeding to trial and, equally, a case for greater use of the offences of wasting police time and even, potentially, harassment where the complaint is egregiously trivial, but that’s about all these ‘concerns’ merit and they’re certainly not sufficient to justify holding back on putting the gay community on an equal footing with other communities, including Christians, who are protected from acts which incite hatred on religious grounds.

Andrea Minichiello Williams, of the Lawyers’ Christian Fellowship, said: “If such an amendment is put forward, it is likely to be in the form of the existing incitement against racial hatred law. The type of actions targeted would not only be violently homophobic words, but would no doubt cover any criticism of practising homosexuality, homosexual acts and lifestyles.”

It appears that the amendment in question is more likely to be in the form of the provisions covering religious hatred – the difference is that religious hatred is limited to threatening words and behaviour and limited specifically to intent while racial hatred also encompasses words and behaviour deemed abusive and/or insulting and reckless behaviour.

That leaves us to ponder the question of why she appears to suggest that Christians incapable of mounting criticism of homosexuality without resort to threats and/or insults and abuse.

She added: “It is our view that such a law is not necessary, as the criminal law already prohibits acts of violence, harassment or threatening words or behaviour against homosexuals as it does against all individuals.

“The introduction of such a law would not be protecting human rights but rather accord special treatment to the homosexual lobby at the expense of freedom of speech and conscience of all.”

Again, the question has to be asked whether, in asserting that the proposed law is not necessary she is, by extension, also suggesting that the offence of inciting racial hatred should be dispensed with – although the same briefing on writing to MPs cited earlier show the cop out that Hart and Minichiello Williams are happy to deploy.

Say that ‘sexual orientation’ is not like race. Even pro-gay researchers admit that homosexual orientation can change. However, race is a fixed trait.

Without getting into the sociological arguments, in law, ‘race’ is not a fixed trait at all because its defined, in the Public Order Act provision on racial hatred by reference to colour, race, nationality (including citizenship) or ethnic or national origin and, of course, its perfectly possible to change one’s nationality and citizenship.

Getting back to Iain, he also advances another less than stellar observation:

Opposing this legislation is not anti-gay. Rather, it is pro freedom of speech. Such proposals would never see the light of day in the US, where freedom of speech is enshrined in the constitution. This issue makes the case better than anything else for a written constitution.

Iain’s assertion that “(s)uch proposals would never see the light of day in the US, where freedom of speech is enshrined in the constitution” is not quite true; there are already state legislatures who have passed or are considering provisions that cover inciting hatred and what the constitution actually does is place a stringent limit on the scope of incitement, one that restricts such laws to ‘fighting talk’ which, like defamation, is outside the bounds of the First Amendment. In effect, what has to be shown is that the incitement had a direct and immediate effect.

If a speaker were to announce to a meeting that ‘we should go out and hang the queers’ and this incited some in the audience to leave the meeting intent on conducting a lynching, the speaker could be held culpable and prosecuted for inciting hatred in a state that has this prohibition on incitement via fighting talk. How far the scope of this goes in practice is yet to be determined, the laws are new and will inevitably result in a test case hitting the Supreme Court no soon as a case arises, but the principle is constitutionally valid.

Even under the First Amendment its recognised in the US that free speech has its legitimate boundaries; fighting talk is one such boundary, as is defamation, incidentally.

The case against implementing this proposed law, and against laws dealing with ‘hate’ crimes, whether in terms of incitement or as an aggravating factor in other offences; one that merits an increased sentence, rests on two basic propositions.

1. Such laws are unnecessary because the actions they precipitate or relate to are already covered by other laws, and

2. That by targeting ‘hatred’ as the basis of the offence or as an aggravating factor they amount or are equivalent to ‘thought crimes’, with the usual corollaries of their being injurious to free speech and a form of positive discrimination that privileges certain minorities over and above the rest of society, etc.

And if you see it that way, then you’re wrong on both counts – and you’re wrong because you’ve forgotten something very important about the fundamental nature and purpose of laws, justice and the criminal justice system.

The view of these laws, given above, and there either explicitly or implicitly in Iain’s remarks, is one that is consistent and sustainable only if one considers law and justice to operate in a very narrow and individualistic context in which its sole or primary purpose is as means of providing individual redress against harm. That’s a libertarian view point, or more specifically a view consistent with libertarian ‘rights theory’ – for everyone else, including consequentialist libertarians, law and justice serves another fundamental purpose, that of the prevention of harm and the preservation of public safety and public order and its in the context of the latter that one finds justification for tackling hatred.

The core argument here is best expressed in these terms:

“it is but reasonable that among crimes of different natures those should be most severely punished, which are the most destructive of the public safety and happiness.”

I’ll mention where that quote is from at the end, but for now lets just say that’s it may well be from a source you wouldn’t expect, given the subject of this post.

That principle leads to the view, in relation to ‘hate’ crimes, that one can justify the criminalisation of incitement and treat hatred as an aggravating factor because:

this conduct is thought to inflict greater individual and societal harm…

and because:

bias motivated crimes are more likely to provoke retaliatory crimes, inflict distinct emotional harms on their victims, and incite community unrest.

That’s the view of the state of Wisconsin and the general basis of its provisions for increased sentencing when dealing with ‘hate’ crimes.

The presence of hatred as a motive for a criminal act is treated as increasing the severity of the offence because it has consequences over and above the ‘norm’ for a particular crime both for the victim and for society – it presents a greater threat to public safety and the preservation of public order, both of which are legitimate matters of concern for law and justice. This is the key justification for treating hatred as an aggravating factor in criminal offences and, equally, for treating the incitement of hatred as a criminal matter. It is not simply an expression of the state’s disagreement with individual views and opinions but a clear deterrent against actions and conduct (and the incitement of such) that are injurious to the individual, society and public safety and order on which both personal and collective liberty depends.

That’s not my own unsupported view, by the way, that’s also the view of the US Supreme Court in Wisconsin vs Mitchell 1993, a ruling that, in addition, neatly disposes of the ‘thought crime’ argument, again in the context of the First Amendment.

The First Amendment, moreover, does not prohibit the evidentiary use of speech to establish the elements of a crime or to prove motive or intent. Evidence of a defendant’s previous declarations or statements is commonly admitted in criminal trials subject to evidentiary rules dealing with relevancy, reliability, and the like. Nearly half a century ago, in Haupt v. United States, 330 U.S. 631 (1947), we rejected a contention similar to that advanced by Mitchell here. Haupt was tried for the offense of treason, which, as defined by the Constitution (Art. III, § 3), may depend very much on proof of motive. To prove that the acts in question were committed out of “adherence to the enemy” rather than “parental solicitude,” id., at 641, the Government introduced evidence of conversations that had taken place long prior to the indictment, some of which consisted of statements showing Haupt’s sympathy with Germany and Hitler and hostility towards the United States. We rejected Haupt’s argument that this evidence was improperly admitted. While “[s]uch testimony is to be scrutinized with care to be certain the statements are not expressions of mere lawful and permissible difference of opinion with our own government or quite proper appreciation of the land of birth,” we held that “these statements . . . clearly were admissible on the question of intent and adherence to the enemy.” Id., at 642.

The relevance of hatred is not in the thought itself, but in the fact that it provides the motive or intent to commit the crime, or in the case of incitement to seek to induce others to commit a criminal act, hence W. LeFave & A. Scott, Substantive Criminal Law § 3.6(b), p. 324 (1986) notes that

“Motives are most relevant when the trial judge sets the defendant’s sentence, and it is not uncommon for a defendant to receive a minimum sentence because he was acting with good motives, or a rather high sentence because of his bad motives”

While in Tison v Arizona (1987) the presiding judge noted that:

“Deeply ingrained in our legal tradition is the idea that the more purposeful is the criminal conduct, the more serious is the offense, and, therefore, the more severely it ought to be punished”

That, I think, should answer Sunny’s question:

The question is, should “hate-crime” based on a person’s race, sexuality or religion carry extra punishment?

That leaves just our previously quoted ‘friend’ who considers that the crimes we should treat most seriously and severely are those which are “the most destructive of the public safety and happiness”.

What do you reckon? Would you say that they’re a of a collectivist? A statist, perhaps? Maybe even an all-round sandal-wearing, politically correct, multiculturalism loving leftist?

Actually the quotation is from Sir William Blackstone‘s Commentaries on the Laws of England, as cited by the US Supreme Court in Wisconsin vs Mitchell.

Actually, there’s one more thing to point out as regards the ‘positive discrimination’ in favour of minorities contention in regards to hate-crimes, again from Wisconsin vs Mitchell and that’s this brief description of the circumstances of the case which led to the question of the constitutionality of hate (or bias as its put in the US) as an aggravating factor in criminal matters being put to the Supreme Court:

On the evening of October 7, 1989, a group of young black men and boys, including Mitchell, gathered at an apartment complex in Kenosha, Wisconsin. Several members of the group discussed a scene from the motion picture “Mississippi Burning,” in which a white man beat a young black boy who was praying. The group moved outside and Mitchell asked them: ” `Do you all feel hyped up to move on some white people?’ ” Brief for Petitioner 4. Shortly thereafter, a young white boy approached the group on the opposite side of the street where they were standing. As the boy walked by, Mitchell said: ” `You all want to fuck somebody up? There goes a white boy; go get him.’ ” Id., at 4-5. Mitchell counted to three and pointed in the boy’s direction. The group ran towards the boy, beat him severely, and stole his tennis shoes. The boy was rendered unconscious and remained in a coma for four days.